WASHINGTON — Despite expressing objection that the matter was decided by the judicial branch instead of the legislature, Justice Brett Kavanaugh, the conservative darling who was a hotly-contested Supreme Court nominee amid sexual abuse allegations, wrote in his dissent on Monday that he finds the high court ruling reading sexual orientation and gender identity into the meaning of “sex” in federal civil rights law to be an “important victory” for “gay and lesbian Americans” and they can “take pride in” it.
“Notwithstanding my concern about the court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” he wrote.
“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result,” Kavanaugh stated.
He said that he agreed with the outcome of the ruling but not the manner in which it was achieved.
“Instead of a hard-earned victory won through the democratic process,” Kavanaugh explained, “today’s victory is brought about by judicial dictate — judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this court is the wrong body to change American law in that way.”
Read Kavanaugh’s dissent here, beginning on page 145. His supportive remarks are on page 171.
As previously reported, Kavanaugh was one of three judges on the nine-justice panel who dissented from the opinion, but he wrote his own dissent to express his partial objection and partial congratulations. Fellow “conservative” justice John Roberts sided with the majority, along with Trump-nominated Neil Gorsuch, who wrote the favorable decision.
ALITO AND THOMAS’ DISSENT
Justices Samuel Alito and Clarence Thomas joined together for the other dissenting opinion, in which Alito similarly stated that the judicial branch wrongfully usurped the role of the legislature, finding it “deceptive” to say that the Supreme Court merely interpreted federal law.
Alito also expressed concern that the decision will have “far-reaching consequences” as more than 100 federal statues prohibit discrimination on the basis of sex. He worried what might become of the issue of the use of locker rooms and restrooms by those who identify as the opposite sex, as well as the future of women’s sports and the rights of those in the healthcare sector, as well those of religious organizations — such as faith-based schools.
“Before issuing today’s radical decision, the court should have given some thought to where its decision would lead,” Alito chastised. “As the briefing in these cases has warned, the position that the court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the court’s decision represents an unalloyed victory for individual liberty.”
“A school’s standards for its faculty ‘communicate a particular way of life to its students,’ and a ‘violation by the faculty of those precepts’ may undermine the school’s ‘moral teaching.’ Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment,” he noted.
“Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment,” Alito lamented.
He also pointed out that transgenders have filed suit for being denied sex change operations, and “[s]uch claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.”
As previously reported, the Supreme Court issued its 6-3 ruling on Monday morning, concluding that a section of the Civil Rights Act of 1964, known as Title VII, which bars job discrimination on the basis of sex, among other traits, may be read to include homosexual and “transgender” employees.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” Justice Neil Gorsuch wrote for the court.
BACKGROUND
One of the three cases before the court surrounding the issue involved R.G. & G.R. Harris Funeral Homes, an explicitly Christian home that was sued after firing a male employee who wanted to begin wearing a skirt uniform for work as he was diagnosed with “gender dysphoria.”
“R.G. & G.R. Harris Funeral Homes recognize that its highest priority is to honor God in all that we do as a company and as individuals,” the company’s website states. It also features a quote from Matthew 6:33, in which Jesus taught that men should “seek first the kingdom of God and His righteousness.”
Because owner Thomas Rost Rost did not feel comfortable with providing a skirt suit due to his Christian convictions, Stephens was let go.
Stephens consequently took the matter to the federal Equal Employment Opportunity Commission (EEOC), which sued Rost with the aid of the American Civil Liberties Union (ACLU) in alleging gender discrimination.
“R.G. employees understand that the dress code requires funeral directors to wear company-provided suits,” attorneys for Rost outlined in a legal brief. “Rost sincerely believes that he would be violating God’s commands if he were to pay for or otherwise permit one of RG’s funeral directors to wear the uniform for members of the opposite sex while at work.”
A federal court ruled against Rost, but the Sixth Circuit overturned the decision. The matter was then appealed to the U.S. Supreme Court. Stephens died last month following a lengthy battle with kidney disease.
CONSERVATIVE BUT NOT CHRISTIAN
Isaiah 5:20 states, “Woe unto them that call evil good and good evil, that put darkness for light, and light for darkness, that put bitter for sweet, and sweet for bitter!”
Many Christians and conservatives had argued that the reason for electing a Republican was that he would appoint conservative justices to the bench who would rule differently from their liberal counterparts.
As previously reported, President Trump has stated on numerous occasions that he supports those who identify as homosexual, urging other countries in a tweet last year to join his administration’s efforts to decriminalize homosexuality around the world.
“As we celebrate LGBT Pride Month and recognize the outstanding contributions LGBT people have made to our great nation, let us also stand in solidarity with the many LGBT people who live in dozens of countries worldwide that punish, imprison, or even execute individuals on the basis of their sexual orientation,” he wrote.
“My administration has launched a global campaign to decriminalize homosexuality and invite all nations to join us in this effort!” Trump urged.
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